The DOJ Makes a Move On the Academy

April 19, 2019

By: Brandon T. McClure

Director Steven Spielberg made headlines recently when it was announced that he would approach the board of governors for a change in the rules for which films could qualify for the Best Picture category at the Academy Awards. Currently the rule is that any film that plays for one week in a theatre in Los Angeles and New York can be considered for Best Picture.

Netflix has also been trying to change the rules but for something more in their favor; a campaign they have seemingly abandoned for the time being since they have, instead, been playing a few of their movies in theatres for limited engagements. Netflix has never hidden the fact that they feel the theatre system is outdated and should be replaced with a direct to consumer only market. Something many filmmakers such as Spielberg disagree with. Spielberg’s goal is to help the theatre industry succeed.

When Spielberg was questioned about why he was going to approach the board for a rule change, he responded: “I don’t believe that films that are just given token qualifications, in a couple of theaters for less than a week, should qualify for the Academy Award nominations. Fewer and fewer filmmakers are going to… raise money, or to compete at Sundance and possibly get one of the specialty labels to release their films theatrically. And more of them are going to let the SVOD [Streaming Video On-Demand] businesses finance their films, maybe with the promise of a slight, one-week theatrical window to qualify for awards…” Netflix creates an uneven playing field in general as they are capable of spending more money on For Your Consideration campaigns then most other studios, including the smaller “specialty labels”.

Apple recently announced Apple TV+ with Steven Spielberg as a key speaker at the event. This event alone has sparked a massive debate among audiences, critics and filmmakers and even The Justice Department. The Justice Department has warned the Academy of Motion Picture Arts and Sciences that any potential rule change that limits the eligibility of Netflix and other streaming services could raise “antitrust concerns and violate competition law”. If this sounds familiar, this is the same laws that many were arguing that the Disney/Fox merger violated.

The chief of the DOJ’s Antitrust Division, Makan Delrahim, wrote a letter to Dawn Hudson, the CEO of the Academy saying “if the Academy adopts a new rule to exclude certain types of films, such as films distributed via online streaming services, from eligibility for the Oscars, and that exclusion tends to diminish the excluded films’ sales, that rule could therefore violate section 1.” Letters written by the government are often hard to understand but the intent here seems clear, if the academy rules in a way that makes it so streaming services couldn’t qualify, then the DOJ will feel the need to step in. Almost like they forgot the Golden Globes and the Emmy’s exist.

The Justice Department is concerned that traditional media outlets tend to try and limit competition from streaming services, even those that have grown significantly in recent years like Netflix and Amazon Prime. These were the same concerns that were brought up when AT&T and TimeWarner were merging. Limiting how content gets to consumers has been a hot topic in recent years.

Spielberg’s concerns over the eligibility of movies on streaming platforms have triggered intense debate in the industry. Netflix attempted to counter Spielberg’s argument by saying they are only trying to offer more accessible media, but they miss the point of what he was saying. In Steven Spielberg’s eyes, a TV movie shouldn’t be up for a cinematic award, no matter the quality of the film. Spielberg told ITV News last year that Netflix and other streaming platforms have boosted the quality of television, but “once you commit to a television format, you’re a TV movie. … If it’s a good show—they deserve an Emmy, but not an Oscar.”

Streaming has changed the game in ways that we’re just beginning to see, but the academy’s first job is to preserve the theatre going experience and if services like Netflix want to qualify, then they should be a part of that conversation. Regardless of where you fall in this debate that will rage on for years to come, it is clear that the Academy needs a rule change. For example, instead of a one-week window, perhaps a four-week window in more than two cities, or use Amazon’s approach as a template and limit when that film debuts on a streamer. Time will tell what that decision will be.